William Balin, Balin & Kotler
All active California lawyers must complete 25 hours of continuing legal education (CLE) every three years, or risk being placed on inactive status. (Bus. & Prof. Code §6070, subd. (a).)
Additionally, misrepresenting that one has completed those hours may result in disciplinary action by the State Bar of California. Though these requirements may seem burdensome and unnecessary, the importance of compliance with them cannot be overstated.
CLE is governed by section 6070; California Rules of Court, Rule 9.31; and Title 2, Division 4 of the Rules of the State Bar, Rules 2.50-2.93. Of the 25 hours of CLE, at least four hours must be for courses in legal ethics, one hour must deal with the elimination of bias in the legal profession, and one hour must deal with the prevention, detection and treatment of substance abuse or mental illness that impairs professional competence. (State Bar Rules, Rule 2.72.) There are no subject requirements as to the other 19 hours of instruction.
These requirements impact different attorneys differently. Government attorneys (both California and federal), officers and elected state officials, and full time professors at accredited law schools are exempt from having to meet CLE requirements. (State Bar Rule 2.54.) Lawyers who teach CLE classes receive four times their scheduled speaking time (St. Bar Rule 2.81), but such speakers only receive the preparation bonus for presentations that constitute a “significant change” from a prior presentation. (Ibid., subd. (A).) Adjunct law school professors get twelve times the credit hours for a course, or the actual teaching time for teaching one of the specified subjects, such as legal ethics. (St. Bar Rule 2.82.) Authors of legal articles may also receive credit for published articles that were not prepared in the ordinary course of their employment or in conjunction with their own CLE presentation. (St. Bar Rule 2.83., subd. (C).)
Lawyers may claim one-half of their minimum hours for self-study, but lest one think this is a way to avoid 12½ hours of CLE, think again. For self-study, the lawyer must provide the state bar with a record that includes the title, provider, credit hours and date of each activity; for the remainder the lawyer must provide the CLE provider’s certificate of attendance. (St. Bar Rule 2.73.) Exempt lawyers must provide proof of their exempt status.
The state bar conducts random audits of California lawyers’ CLE participation. Recently the state bar has increased the number of audits, resulting in a number of disciplinary prosecutions. These prosecutions are almost all based on allegations of dishonesty for verifying that the lawyers have complied with the CLE requirements when they knew, or reasonably should have known, they had not. Findings of dishonesty general result in actual suspensions. These accusations rested both on claims the reportees had completed courses they had not actually taken, and on their failure to maintain or keep records of their CLE attendance, regardless of whether they actually took the course. (See St. Bar Rule 2.90.) While simple forgetfulness or negligence may be a defense to a charge based on misrepresentation, the burden for establishing negligence falls on the lawyer. When it is the lawyer’s duty to maintain CLE records to establish compliance, it is difficult to argue that the failure to do so was simply forgetfulness.
All active lawyers, therefore, are advised to maintain adequate records to establish their compliance with CLE minimum requirements.
About the author:
William M. Balin has been a BASF member since 2000 and an active member of its Legal Ethics Committee since 2002.